Towns allowed to ban smoking in private clubs

Extending the government's reach over where smokers can light up, the Supreme Judicial Court said yesterday that local health departments can ban smoking in private clubs and meeting halls, leaving only private homes and a few other indoor places free from antitobacco regulations in Massachusetts.

Dozens of cities and towns have already banned smoking in such clubs, which include veterans' posts and ethnic heritage clubs. The high court's decision keeps these bans in place.

And although some of the clubs covered by the ruling, such as Veterans of Foreign Wars and American Legion posts, hark back to an era of smoke-filled rooms, many have already voluntarily gone smoke-free, officials said yesterday.

''A lot of the clubs don't have smoking and get no big complaint," said Gordon Crosby, state VFW adjutant, who oversees 240 posts across Massachusetts. ''Smokers smoke outside. Some guys say they fought for their country and ought to be able to smoke. But most understand that second-hand smoke can be a problem."

For many antismoking advocates, yesterday's decision completes an effort begun by the historic 2004 law that broadened the smoking ban in public workplaces to cover bars and restaurants. Private clubs, some hotel rooms, tobacco retailers, and a few other places were exempt.

About 1 in 5 Massachusetts residents are smokers, and health advocates say the ban will help push smokers to quit.

By October, Massachusetts was one of four states that banned smoking in all private workplaces, restaurants, and bars, according to the American Cancer Society. It was unclear whether the bans in Delaware, New York, and Rhode Island extend to private clubs.

The case before the high court arose after November 2004, when the town of Athol banned smoking in clubs, threatening violators with fines of $100 and more.

''The town said, 'We're going to prohibit smoking in these private clubs,' " said Christopher N. Banthin, deputy director of the Public Health Advocacy Institute at Northeastern University, who represented Athol in the case. ''People were being exposed to a known human carcinogen, people who had to be in there for work."

Three groups in Athol challenged the town's regulation: the American Lithuanian Naturalization Club, the Franco-American Naturalization Club, and American Legion Post 102. The groups contended that the Athol health board had overstepped its bounds and violated the civil rights of club members. In addition, they argued that the 2004 smoking law, by creating an explicit exemption for such clubs, prevented localities from banning smoking in them.

A Superior Court judge agreed, saying the Athol regulation was ''unreasonable, arbitrary, and capricious."

The town appealed the case to the high court, which in its ruling disagreed with the clubs on nearly every substantive point. First, the majority opinion pointed out that the 2004 law, while creating an exemption for clubs, did not preclude future regulation and specifically stated that local officials retained that option.

The court said private clubs were quasi-public institutions that ''are incorporated in and receive the benefit from Massachusetts laws and licenses," thus making them subject to public health regulation, according to the unanimous decision written by Chief Justice Margaret H. Marshall.

The court dismissed the clubs' allegations of civil rights violations, determining that smoking bans were no threat to the groups' constitutional right to assembly.

''It's up to the community to decide what their public health needs are," Banthin said. ''They're going to look at their needs, the facts, and make the decision. This decision by the court is respect for municipal authority."

The court's ruling did not sit well with Norman Lafountain, a bartender who works at the Franco-American club. ''I'm surprised that they went with the Board of Health in the small, dinky town of Athol, with a population of 10,000," he said. ''It's too bad. This is a private club. Pretty soon, they won't even let you smoke in your house."

Lafountain, 54, who said he smokes a pack and a half of Marlboros a day, said most of the other six bartenders at the club are also smokers. He brushed aside suggestions that smoke might turn off prospective employees.

''If they don't want to work here, they don't have to work here," he said.

Numerous communities had banned smoking in private clubs long before the SJC decision, including Boston, Brookline, Lynn, Marblehead, and Saugus. ''We were concerned they would rule the other way," said Joyce Redford, program director for the North Shore Tobacco Control Program.

Brookline, the first municipality in the state to ban smoking in bars and restaurants, also banned smoking in private clubs in the mid-1990s. Alan Balsam, the town's public health commissioner, said he's now fielding complaints about smoking in multifamily buildings. ''I would say the issue is now more about condominiums and apartments," he said. ''There should be some way that people can avoid second-hand smoke in their own home if it's coming from the apartment below. What if the kid upstairs has asthma? It's a tough decision."

Mishra can be reached at rmishra@globe.com; Saltzman at jsaltzman@globe.com.